My solicitor is telling me I need to take a 10 per cent reduction for my damages, as my helmet was not buckled at the time of the collision. A case has been mentioned to me, Capps v Miller (1989), where the rider had his damages reduced by 10 per cent because his helmet came off. I am not a mug. My helmet was always buckled but my solicitor is saying because I cannot remember buckling the helmet (I can’t remember the entire day leading up to the accident) I have to take the reduction.
He has quoted some Latin at me, “res Ipsa loquitur”, which he has tried to explain but I just don’t get. The 10 per cent makes about a £4000 difference to my case. Should I fight on?
Your solicitor, who is at a pretty good firm, is wrong. Everything else about your case has been done perfectly properly but on this one he has got the law of evidence and the law on “contributory negligence” wrong. In Capps v Miller there was no doubt, the rider did not have his helmet buckled. Detailed forensic tests made this clear. In your case no one has examined the helmet and it’s the insurers who have to prove your helmet was unbuckled. A competent but non-specialist solicitor has made an understandable leap of illogic – “Your helmet came off, helmets don’t come off if they are buckled, so the helmet was unbuckled.”
Your solicitor has also got a fundamental principle of law wrong. He has told you that, as you had control of your helmet and it has inexplicably failed, you will be found to blame. That is the basis of “res Ipsa loquitur” but he has applied it incorrectly. You were not in control of your helmet as it banged into the car.
Your helmet did not fly off with no obvious cause. If it flew off while riding, he’d be right. These arguments are all superficially attractive until you know something about helmets.
Statistics reveal that in about one in five blows to the head involving a motorcycle the helmet is forced off the head. Even perfectly fitted helmets come off, as the tragic death of Marco Simoncelli at the 2011 Malaysian GP reveals.
A helmet is a design compromise. You have to get it on and off, it has to be aerodynamically stable and it has to pass EU tests for impact resistance. Your helmet came off during a vehicle strike. That is very common. It protected your head during the impact. But a helmet, with unpredictable forces put through it, can come off.
RiDE Magazine November 2014